Opinion
NOT TO BE PUBLISHED
APPEAL from the Super. Ct. No. RIJ119543 Court of Riverside County. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
King, J.
I. INTRODUCTION
Defendant S.M. (Mother) appeals from an October 26, 2010, order terminating parental rights and placing her daughters, M.R., then age five, and B.C, then age two, for adoption. (Welf. & Inst. Code, § 366.26.) In June 2010, the juvenile court denied Mother reunification services for the girls after finding that she was a person described in section 361.5, subdivision (b)(10) and (11). Around 2004, Mother’s parental rights to two older girls were terminated and she failed to reunify with a third daughter, despite having reunification services for all three children. Mother’s long-standing substance abuse problems underlay the dependencies of the three older children and of M.R. and B.C.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On this appeal, Mother claims the juvenile court abused its discretion in denying her section 388 petition, filed shortly before the section 366.26 hearing, in which she requested that the court change its June 2010 order denying her reunification services and grant her reunification services for M.R. and B.C. Mother argues the evidence was “uncontroverted and of such character and weight as to compel granting of her [petition]” and awarding her services. (Bolding and capitalization omitted.) We conclude the section 388 petition was properly denied, and affirm the order terminating parental rights.
II. FACTS AND PROCEDURAL HISTORY
A. The Events Leading to M.R.’s and B.C.’s Dependencies
On March 30, 2010, the Department of Public Social Services (DPSS) received a report that a young girl was found wandering the streets unsupervised. A neighbor had recognized the girl as M.R., then age four. The neighbor took M.R. home with her and called police. M.R. showed a police officer where she lived. The officer found an unrelated caretaker, Jesse B., in the home where M.R. said she lived. M.R.’s half sister B.C., then age two, was also in the home. Jesse B. appeared to be under the influence of a controlled substance, so the officer took the girls to the Banning police station.
The social worker responded to the police station, and found the girls were dirty and wearing dirty clothing. M.R. told the social worker she lived with Mother, B.C., Jesse. B., and “everyone else, ” and slept on a couch with Mother. There was some food in the home, but not enough food for the girls. B.C. needed a diaper change but Jesse B. did not know where Mother kept the diapers.
Around 6:00 a.m. on March 31, Mother contacted DPSS to ascertain the girls’ whereabouts. Mother claimed she had been with a friend the night before, helping the friend pack, and fell asleep. She admitted using methamphetamine that night, but claimed it was the first time in years she had used any illegal drug. Mother said she tried using heroin, alcohol, and marijuana but did not like their effects on her.
Mother believed Roy P. was M.R.’s father, but she had not had any contact with him since conceiving M.R. She had sexual intercourse with several men around the time M.R. was conceived. Mother believed Isaac C. was B.C.’s father, and he had seen B.C. only a few times. The social worker spoke with Isaac C., who said he did not believe B.C. was his daughter. Isaac C. said Mother “walked the streets, looking for men to have sex with” and was “walking the streets” when she became pregnant with B.C.
Defendant moved in with Jesse B. because she was being evicted from her home, and Jesse B. agreed to let her and the girls live with him. Mother knew little about Jesse B. She knew he had spent time in prison but she did not know why. Jesse B. had two prior strike convictions, including a conviction for “transportation/sale/distribution” of a controlled substance.
Mother had a dependency history in San Bernardino County involving three other children. In December 2001, Mother was referred to substance abuse treatment after giving birth to a girl, M.J., who testified positive for methamphetamines at birth. In May 2002, Mother’s oldest daughter, A.M., was found wandering unsupervised outside Mother’s home, and A.M. and M.J. were taken into protective custody. A.M. and M.J. were returned to Mother’s care in January 2003, but were detained again in March 2003 because Mother was not doing well in substance abuse treatment.
In April 2003, Mother gave birth to a third girl, A.H., who was also detained outside Mother’s care. In February 2004, A.M.’s father obtained custody of A.M., Mother’s services for A.M. were terminated, and A.M.’s dependency case was dismissed. Later in 2004, Mother’s parental rights to M.J. and A.H. were terminated.
M.R. was born in August 2005. In 2006, M.R.’s maternal grandmother, Sylvia L., obtained legal guardianship of M.R. Mother agreed to the guardianship in order to prevent San Bernardino County Children and Family Services from taking custody of M.R. According to Mother’s sister-in-law, Sylvia L. had suffered strokes and currently suffered from dementia and seizures. Because her health rendered her unable to care for M.R., Sylvia L. returned M.R. to Mother’s care around the early fall of 2009.
Meanwhile, B.C. was born in February 2008. When M.R. and B.C. were taken into protective custody on March 30, 2010, M.R.’s speech was difficult to understand. Mother told the social worker she was aware that M.R had speech problems but had not had M.R. assessed. M.R. was later diagnosed as suffering from some hearing loss.
B. The Dependency Proceedings Through Disposition
On April 2, 2010, DPSS filed a petition alleging that M.R. and B.C. were described in section 300, subdivisions (b) and (g). At an April 5 detention hearing, the juvenile court ordered the girls detained in DPSS custody, and ordered DPSS to provide Mother with alcohol and drug testing, substance abuse treatment, parenting education, counseling, and other services DPSS deemed appropriate. Mother was allowed at least one supervised visit with the girls each week.
On April 9, Mother enrolled in the Family Preservation Court program. By April 26, the program case manager reported that Mother was in full compliance with the program. Phase I of the program included instruction on relapse prevention, anger management, reunification planning, and educational and vocational support. On a weekly basis, Mother was attending as many as three treatment and self-help meetings, and was subject to random and on-demand drug tests.
Notwithstanding Mother’s early success in substance abuse treatment, in its April 27 jurisdictional/dispositional report, DPSS recommended that Mother be denied reunification services based on her failure to benefit from similar services in San Bernardino County, and failure to reunify with her three older children. DPSS claimed that Mother minimized her substance abuse, did not have means to support herself, was still living with Jesse B., and was behind on B.C’s immunizations.
In a late May addendum report, DPSS informed the court that Mother claimed she had been clean for 51 days and would be enrolling in the Our House inpatient substance abuse program. As of May 18, Mother was still in full compliance with the Family Preservation Court program, and her visits with the girls had been affectionate and appropriate. On June 28, the jurisdictional/dispositional hearing was held. By that time, DPSS had filed for termination of Sylvia L.’s guardianship of B.C. and had also filed a second amended dependency petition for the girls.
The second amended petition alleged Mother “demonstrates a limited ability to parent” because she left the girls with a caretaker who abused controlled substances and allowed M.R. to wander the streets; Mother had a history of substance abuse, failed to complete or benefit from previous treatment, and had a criminal arrest history for drug related charges; Mother’s parental rights to two other children were terminated in San Bernardino County, and her reunification services for a third child were also terminated; and Sylvia L. failed to protect M.R. and B.C. by leaving them in Mother’s care, and Mother failed to meet the girls’ medical and developmental needs by failing to obtain a speech assessment for M.R. and current immunizations for B.C.
At the June 28 hearing, the court received DPSS’s reports into evidence, together with a letter from Our House, a residential inpatient treatment center for women with dependent children that Mother entered on May 19. The letter informed the court that Mother had been in treatment for 80 days, 39 of them inpatient, and was in compliance with the rules of the program. The Our House program included parenting classes, individual counseling, drug and alcohol education, group meetings, and Alcoholics Anonymous and Narcotics Anonymous meetings. Based on her participation in the outpatient and inpatient programs, her clean drugs tests, and her strong desire to reunify with the girls, Mother asked the court to grant her reunification services for the girls.
The juvenile court found the allegations of the second amended petition true, declared the girls dependents, denied reunification services to Mother, and set a section 366.26 hearing on October 26. The court found by clear and convincing evidence that Mother was a person described in section 361.5, subdivision (b)(10) and (11), and that denying reunification services to Mother was in the best interests of the girls. The court also denied services to the alleged fathers, terminated Sylvia L.’s guardianship of M.R., and reduced Mother’s visitation from once weekly to twice monthly, supervised.
C. The Section 388 Petition and Section 366.26 Hearing
The girls were placed in a prospective adoptive home on July 21. In a section 366.26 report filed on October 1, DPSS reported the girls were happy, comfortable, and “thriving” in their new home, had quickly bonded with their prospective adoptive parents, and looked to their prospective adoptive parents for comfort and support.
The October 1 report also described Mother’s continuing visits with the girls. Mother had apparently never missed a visit, and between visits would inquire about the girls’ well-being. The visits would begin and end with hugs and kisses, and the girls were happy to see Mother. Mother would read to the girls, play with them, and teach them things during the visits. Mother would often become emotional and cry during the visits, which would upset the girls, and her displays of affection toward the girls at times appeared forceful.
M.R., then age five, became upset following the visits, which appeared to cause her “some internal emotional conflict.” Unlike M.R., B.C., then age two, had “no difficult[y] coming and going to visits” with Mother. On August 18, M.R. told the social worker she liked living with her prospective adoptive parents and felt safe with them, her new brother N., and their cat. M.R. said she had a “real mom and dad and a fake mom and fake dad.”
Mother filed a section 388 petition on October 25, 2010, the day before the section 366.26 hearing, asking the court to grant her reunification services. The petition was heard on October 26, immediately before the permanency hearing.
In her petition, Mother claimed her circumstances had changed and that granting her services would serve the girls’ best interests. On August 19, she completed the six-month inpatient treatment program at Our House. She was currently living in transitional housing, was attending Narcotics Anonymous meetings, and looking for work. She had also completed a six-week active parenting program and counseling. One of Mother’s counselors described her as having come “a long way since entering treatment.”
During the hearing on her petition, Mother testified concerning her visits with the girls. Mother loved the girls very much, shared a bond with them, and wanted very much to reunify with them. The girls would hug Mother, called her “mom” or “mommy, ” and would run up to her when they saw her. M.R. would ask Mother when she could go home with her. There was housing for the girls at the Our House transitional living program. March 29, the day the girls were detained, was the last day Mother used any controlled substances.
Mother testified on cross-examination about her prior dependency cases. She participated in three inpatient substance abuse treatment programs in San Bernardino County. She completed a program at Gibson House, then she completed a program at MFI and went to Prototypes. She did not know she was pregnant with A.H. when she went to Prototypes.
According to Mother, the San Bernardino County social worker believed Mother was “overwhelmed and stressed” in having to care for A.M. and M.J. while pregnant with A.H., and for that reason took custody of M.J., then age one. A.H. was born two weeks later. Though A.H. tested clean, A.H. was detained because Mother had an “open case.” A.M., then age four, was living with Mother in Prototypes, but was removed from Mother’s care after a resident reported that Mother was “playing rough” with A.M. Shortly thereafter, Mother was told to leave Prototypes. A.M. was placed in her father’s care, and A.H. and M.J. were adopted.
The court denied the petition. In light of Mother’s long-standing substance abuse problems, the court reasoned that her relatively recent sobriety constituted changing circumstances, not changed circumstances. The court also found, because the girls were in a “good adoptive home” and were in the process of bonding with their prospective adoptive parents, it was not in their best interests to subject them to a period of further uncertainty by allowing for the possibility that they would reunify with Mother.
At the section 366.26 hearing, the court terminated Mother’s parental rights and placed the girls for adoption, after finding that none of the exceptions to the adoption preference applied, including the beneficial relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) Mother timely appealed.
III. DISCUSSION
Mother claims the juvenile court abused its discretion in denying her section 388 petition to grant her reunification services, and, as a result, the order terminating parental rights must be vacated. We conclude the court did not abuse its discretion in denying the petition, and affirm the termination order.
Under section 388, a parent may petition the juvenile court to change, modify, or set aside a prior court order if the petitioner establishes by a preponderance of the evidence that (1) there are new or changed circumstances since the prior order, and (2) the proposed change would serve the best interests of the child. (In re S.J. (2008) 167 Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].) The petition is addressed to the sound discretion of the court, and the court’s ruling will not be disturbed on appeal unless an abuse of discretion is shown—that is, unless the court’s ruling was “arbitrary, capricious, or patently absurd.” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Mother argues she met her burden of showing that her circumstances had changed since the court denied her reunification services in June 2010, and that granting her reunification services would serve the girls’ best interests. Regarding changed circumstances, Mother points out that her efforts to address her substance abuse problem had been “consistent and flawless” since the day the girls were removed from her care, and there was nothing more she could have done to address her substance abuse problem.
Though Mother had done an excellent job of staying drug-free during the seven months preceding the October 2010 hearing, she had a history of substance abuse and relapse following months of sobriety. She first received substance abuse services in San Bernardino County in 2001, and by 2004 had, by her own admission, completed two inpatient substance abuse programs (Gibson House and MFI). She entered a third inpatient program (Prototypes) in 2004, but was asked to leave that program. Two of Mother’s older children were later adopted, and her services to a third child were terminated. At the time of the October 2010 hearing, Mother was living in transitional housing and had not shown she could stay sober while living on her own, without assistance. Thus, the court did not abuse its discretion in concluding that Mother demonstrated changing but not changed circumstances. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [Fourth Dist., Div. Two] [no showing of changed circumstances where parents’ sobriety was only three months old and parents had extensive histories of drug use].)
Regarding the best interests prong of section 388, Mother argues the court failed to consider several factors, including the complexity of the problems that led to the girls’ dependency and the relative strengths of the bonds the girls shared with Mother and their prospective adoptive parents. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529-531.) More specifically, Mother argues that, though her substance abuse problem was a “major factor” leading to the girls’ dependency, another “major factor” was her inability to afford suitable housing and a lack of support system for the girls.
Not so. The girls were declared dependents after M.R. was found wandering the streets looking for Mother, while Mother was using drugs, did not come home all night, and left M.R. and B.C. in the care of Jesse B., who appeared to be under the influence of controlled substances. Mother’s substance abuse was the major problem leading to the girls’ dependency, as the juvenile court recognized.
We also disagree with Mother’s assertion that the court failed to consider the strength of her bond with the girls, as compared to the strength of the girls’s nascent bond with their prospective adoptive parents. Mother testified, and DPSS acknowledged, that Mother consistently visited the girls, played with them and read to them, showed affection toward them, and loved them very much. But the record also showed that the girls felt “comfortable and safe” in their prospective adoptive home, and were in the process of bonding with their prospective adoptive parents. At the time Mother filed her section 388 petition shortly before the section 366.26 hearing, the focus of the proceedings had shifted to the girls’ need for a permanent and stable home. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.)
The girls were very young—only two and five years old at the time of the hearing. As the court recognized, Mother did not demonstrate how the interests of the girls would be served by subjecting them to a further period of uncertainty—by allowing for the possibility they would reunify with Mother—rather than allowing them to be adopted into a permanent, stable home. (In re Stephanie M., supra, 7 Cal.4th at p. 317 [“a primary consideration in determining the child’s best interests is the goal of assuring stability and continuity.”].) For all of these reasons, the juvenile court did not abuse its discretion in denying Mother’s section 388 petition.
IV. DISPOSITION
The order terminating parental rights to M.R. and B.C. is affirmed.
We concur: McKinster Acting P.J., Miller J.